Citation Nr: 21072876 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 14-35 807 DATE: December 6, 2021 ORDER A rating in excess of 20 percent disabling for a cervical strain is denied. REMANDED Service connection for occipital neuralgia. A rating in excess of 20 percent disabling for degenerative arthritis of the lumbar spine. FINDINGS OF FACT The Veteran's cervical strain, even when considering flare-ups, has not manifested as forward flexion of the cervical spine to 15 degrees or less, ankylosis, and/or incapacitating episodes. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent disabling for a cervical strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1997 to June 2009. The case is on appeal from March 2013 and December 2015 rating decisions. In October 2018, the Board issued a decision which, in pertinent part, denied service connection for occipital neuralgia and entitlement to a rating in excess of 20 percent disabling for degenerative arthritis of the lumbar spine and cervical strain. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Memorandum Decision, the Court remanded the claims for further development. Specifically, the Court found that the Board did not address the Veteran's allegations of pain regarding occipital neuralgia and determine whether they rise to the level of a disability separate from his service-connected migraine headaches. The Court also found that the Board relied on inadequate VA examinations as the examinations for cervical and lumbar spine disabilities did not provide findings based on the Veteran's statements describing his flare-ups. The claims were last before the Board in June 2021. At that time, the Board remanded the claims for further development. Increased Rating The Veteran is seeking an increased rating for his service-connected cervical spine disability. He filed a claim for increase in June 2015, which begins the period of appellate review now before the Board (plus consideration of the one-year look back period prior to the filing of that claim). See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). The disability has been assigned a 20 percent rating throughout the entire appeal period. General Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In determining when an increase is "factually ascertainable," all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, "it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rating Schedule The Veteran's cervical spine disability is rated under DC 5237, which is rated according to the General Rating Formula for evaluating the spine. 38 C.F.R. § 4.71a. Prior to the regulatory change, the General Rating Formula provided: - A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. - A 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. - A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Higher ratings are warranted where there is ankylosis of the entire spine. - A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Effective February 7, 2021, the DCs pertaining to the spine were amended. For purposes of this decision, the applicable rating criteria for those DCs did not materially change. See 85 Fed. Reg. 76453 (Nov. 30, 2020) (as corrected at 85 Fed. Reg. 85523 (Dec. 29, 2020), as corrected at 86 Fed. Reg. 8142 (Feb. 4, 2021)). Additionally, DC 5010 provided that where there is post-traumatic arthritis, it should be rated as limitation of motion, dislocation, or other specified instability under the affected joint. Alternatively, intervertebral disc syndrome (IVDS) can be rated under DCs 5237 and 5242 and the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). Under this Formula, a 20 percent disability rating is awarded for IVDS with incapacitating episodes having a total during of at least 3 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is awarded for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is awarded for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. 1. A rating in excess of 20 percent disabling for a cervical strain. The Veteran contends he is entitled to a higher rating for his cervical strain. Medical records from February 2016 provide that while he complained of neck pain and receives Percocet from a non-VA source, the Veteran also had a spine x-ray which showed he has no significant cervical spine abnormality. The same was reported in August 2018 medical records. The Veteran was afforded an October 2015 VA examination. The examiner found the following: forward flexion to 30 degrees, extension to 40 degrees, right lateral flexion to 20 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30. Pain was noted on all ranges of motion, including on weight-bearing. The examiner found moderate cervical and paracervical tenderness. The examiner did not observe additional loss of function or range of motion after repetition. However, the examiner did find pain, weakness, fatigability, or incoordination significantly limit the Veteran's functional ability with repeated used over a period of time. It was estimated that it would lend to a decrease in range of motion, reflected as such: forward flexion to 30 degrees, extension to 40 degrees, right lateral flexion to 20 degrees, and left lateral flexion, right lateral rotation, and left lateral rotation to 30 degrees each. The examiner estimated that, with flare-ups, the impact on range of motion would result in the aforementioned degrees as well. The Veteran was observed to have muscle spasm and localized tenderness resulting in abnormal gait or spine contour. However, the examiner found neither favorable nor unfavorable ankylosis. Another VA examination in June 2018 reflected the following range of motion: forward flexion to 30 degrees, extension to 30 degrees, left and right lateral flexion to 30 degrees, and left and right lateral rotation to 60 degrees. While pain was noted with forward flexion and extension, the examiner did not find any additional loss of function or range of motion after repetition. Additionally, though the Veteran reported flare-ups, the examiner found no pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups. The examiner found no muscle spasm, guarding, IVDS, or ankylosis. Upon the Board's remand, the Veteran was afforded another VA examination in August 2021. During the examination, the Veteran stated he underwent neck fusion surgery in June 2019, but he claimed it provided no relief. He currently complains of experiencing neck stiffness, headaches, and migraines, and presently treats the pain his symptoms with Percocet. He did report experiencing severe flare-ups daily that last hours at a time. The examiner reported the following initial range of motion: forward flexion to 30 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 65 degrees. There was pain on active and passive motion that causes functional loss, such as difficulty lifting things. While the examiner observed repetitive use range of motion testing, there was no additional loss of function or range of motion. Range of motion with repeated use over time reflected the following: forward flexion, extension, right and left lateral flexion to 25 degrees each and both right and left lateral rotation to 60 degrees each. Considering the Veteran's flare-ups, the examiner estimated the following range of motion: forward flexion, extension, right and left lateral flexion to 25 degrees each and right and left lateral rotation to 60 degrees each. There was no localized tenderness, guarding, muscle spasm, radiculopathy, ankylosis, or IVDS. Based on this evidence and considering functional impairment, painful motion, repetitive motion, and flare-ups, the Veteran's cervical strain more closely approximates the criteria for a 20 percent rating throughout the appeal period. Even when considering flare-ups, the evidence does not show forward flexion limited to 15 degrees or less or favorable ankylosis of the entire cervical spine. In fact, In fact, the medical evidence of record consistently reflects forward flexion to 30 degrees, except the estimated additional loss due to flare-ups which is to 25 degrees. Additionally, there is evidence of neither favorable nor unfavorable ankylosis of the entire cervical spine. The Veteran is separately service-connected for radiculopathy of the left and right upper extremities. The disability rating assignable for those disabilities are not within the scope of this appeal. In sum, the preponderance of the evidence is against a rating in excess of 20 percent; thus, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. For these reasons, a rating in excess of 20 percent for degenerative arthritis of the lumbar spine is not warranted. REASONS FOR REMAND 1. Service connection for occipital neuralgia. The Veteran contends not only that his severe headaches are separate and distinct from the pain caused by his service-connected migraines, but that they are secondary to his service-connected cervical strain condition. This case must be remanded again because there has not been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's claim was most recently remanded by the Board in June 2021 for another medical examination and opinion. Both were obtained in August 2021. While the examiner's rationale addressed direct service connection, it did not acknowledge the Veteran's articulated symptoms, namely the pain he reported in previous examinations and even during the August 2021 examination. Thus, the examiner failed to note whether the pain the Veteran experienced and continues to experience causes functional impairment in accordance with Saunders. 886 F.3d 1356 (Fed. Cir. 2018). Further, the VA examiner relied on an absence of documented symptoms during service without explaining why, as a medical matter, that the Veteran would have sought treatment or complained of the condition during service, or why an absence of treatment (as opposed to symptoms) was otherwise medically significant. See McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). Finally, while the examiner provided a direct service connection opinion (concluding the condition is less likely than not incurred in or causes by the claimed in-service injury, event, or illness), the Veteran was not provided a secondary service connection opinion, despite the examiner noting that occipital neuralgia can be the result of pinched nerves, muscle tightness in the neck, or a neck injury. Given the Veteran's contentions and the evidence of record, the Board finds a secondary service connection opinion is warranted. Therefore, the Board finds remand is warranted to determine the etiology of the Veteran's occipital neuralgia, including whether pain rises to the level of disability. 2. A rating in excess of 20 percent disabling for degenerative arthritis of the lumbar spine. This issue is remanded for a new VA examination. The Board last remanded the matter in June 2021 pursuant to the Court' memorandum decision for a VA examination consistent with Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017), and Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Upon remand, a VA examination was conducted in August 2021. This VA examination, although generally complaint with the remand directives, raises new questions. Specifically, whether the Veteran had radiculopathy in either lower extremity due to his lumbar spine disability. A June 2018 VA examination found signs and symptoms of radiculopathy in both lower extremities that were medically graded as mild. The August 2021 VA examiner, by comparison, found on signs or symptoms of radiculopathy. This chronology suggests that the lower extremity radiculopathy had resolved at some point between the two examinations. Because the August 2021 VA provided no discussion on this question, however, it is not factually ascertainable when the change in disability level occurred. Remand is needed to ensure a full and complete record address the duration and severity of the radiculopathy. In light of the remand, updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records dated from May 2021. 2. Schedule the Veteran for a VA examination or telehealth interview, review of the record, etc. if an in-person examination is not feasible) by an appropriate medical professional to determine the nature and etiology of the Veteran's occipital neuralgia. After reviewing the entire file, the examiner should provide an opinion as to: (a.) Does the Veteran have a current diagnosis? The examiner must provide a diagnosis for any conditions found extant. In doing so, the examiner must conduct all necessary diagnostic testing, unless it can be explained why such testing is not medically necessary. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (b.) Is it at least as likely as not that the condition (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? (c.) Was the condition at least as likely as not caused by (i.e., proximately due to) a different medical condition? (d.) Is the condition at least as likely as not aggravated (i.e., worsened beyond its natural progression) by a different medical condition? If it is determined that the condition was either caused or aggravated by a different medical condition, the examiner is asked to identify the primary medical condition. In answering these questions, the examiner is asked to consider the statements from the Veteran regarding his history of symptoms during and since service. The examiner is asked to explain why his statements make it more or less likely that the current condition is related to service. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 3. Schedule the Veteran for a VA examination to assess the severity of his lumbar spine disability. (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (b.) In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (c.) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (d.) The examiner is asked to describe the severity, frequency, and duration of all symptomatology associated with the condition, including any associated neurologic manifestations. The examiner should address the discrepancy between an June 2018 VA examination finding mild radiculopathy of both lower extremities and an August 2021 VA examination finding no signs or symptoms of radiculopathy in either lower extremity. If the radiculopathy has resolved, the examiner should attempt to estimate when this occurred. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Becton, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.